Owners of CJ’s Diner, Jerry and Carrie Martinez, are suing Gov. Jared Polis and state and local health departments, claiming state law, executive orders and public health orders that restrict restaurant operations during the COVID-19 pandemic violate their constitutional rights.
The lawsuit filed in La Plata County District Court seeks to keep the state’s disaster law, executive orders and public health orders restricting restaurant operations during the COVID-19 pandemic from being enforced in restaurants across the state because they violate both the U.S. and the state constitutions.
“The essence of this complaint is that the supreme executive by executive order is purportedly making new laws and implementing new public policies which wholly usurp the power of the legislative department to make the laws, a power which has been delegated by the people through their Colorado Constitution exclusively to the legislative department,” the complaint says.
The lawsuit names Polis; the Colorado Department of Public Health and Environment; San Juan Basin Public Health; and the directors of two health agencies, Jill Hunsaker Ryan, with CDPHE, and Liane Jollon, executive director of SJBPH, as defendants.
Jerry Martinez said getting judicial relief from the numerous public health restrictions that have been imposed on restaurants since March and then continuously revised since then is likely the best option to allow CJ’s Diner to return to economic viability.
“It looks like this, the judicial side, to say that authorities have overreached, is the only way for us to be able to go back to work at a volume that makes sense, ” Martinez said. “We’re probably down probably about 50%. The reality of it is: Anybody who knows anything about a business knows it cannot operate on 25%. It just doesn’t work. We feel like even if we’re running at 100% we’re hoping we’ll be able to make it in Durango.”
CJ’s Diner and the Martinezes are also battling in court over CJ’s refusal to close its dining room for a few days in November when La Plata County was under the state’s Level Red dial framework that banned all indoor dining in restaurants.
A preliminary injunction was issued to force CJ’s to close during the Level Red restrictions, which CJ’s complied with, but CJ’s has asked District Court Judge William Herringer to overturn the injunction, saying the preliminary injunction is unconstitutional.
Overturning the injunction would be a moot point in terms of the current restaurant operation, which like other restaurants in Durango is operating at 25% indoor capacity with takeout and delivery. But it would have statewide ramifications if Herringer sides with CJ’s argument that the injunction was unconstitutional.
CJ’s attorneys are pursuing the same argument of unconstitutionality as it relates to the state’s Disaster Emergency Act, Polis’ executive orders and state and local health department orders based on the state law.
Marian Tone, one of CJ’s attorneys, said: “We’re seeking relief on behalf of CJ’s Diner and Mr. and Mrs. Martinez, but we believe that the declaratory relief and injunctive relief needs to be applied to all the other affected people within Colorado. So what we’re seeking here is relief that will be applied to assist all similarly situated parties in the state.
“The (Disaster Emergency Act) unconstitutionally delegates legislative authority to the governor. In addition, the governor and his administration have unconstitutionally spring-boarded from the act to usurping the legislative authority. It’s unconstitutional both as it is written and as it is applied,” Tone said.
Neither state law nor executive or public health orders can set aside constitutionally protected actions, specifically the freedom to associate, which has been violated by requirements restaurants must follow during the COVID-19 pandemic, she said.
Michael Goldman, attorney for SJBPH, said claims in the lawsuit that public health orders related to the COVID-19 pandemic are unconstitutional should be denied.
“We believe that the ability of the state and local governments – the state health department, the local health department – are all well within their authority in protecting the public health by enacting certain regulations to do just that,” he said.
Goldman said case law has recognized the state’s authority to regulate public health.
In court filings in the case brought by SJBPH against CJ’s for remaining open during the Level Red alert, Goldman wrote, “Other courts including the United States Supreme Court have recognized a state’s authority to regulate public health and the deference that should be given to public health and elected officials on matters such as COVID-19.”
CJ’s civil lawsuit contends the extended course of the pandemic has given Polis four opportunities to constitutionally deal with the pandemic, but the governor has not taken any of them. Polis could have:
Sought a bill during the regular session of the Colorado General Assembly to deal with the pandemic.Sought a bill during the special session.Directed CDPHE to adopt rules to deal with the pandemic following the normal rule-making procedures outlined in the State Administrative Procedures Act.Directed CDPHE to adopt emergency rules to deal with the pandemic again following established state rule-making procedures.Conor Cahill, press secretary for Polis, issued a brief statement about CJ’s civil litigation: “Health guidance is science-based and designed to balance saving lives with allowing as much commercial activity as possible in as safe a way as possible. We recognize that being able to support yourself economically is a public health issue too.”
Representing not only CJ’s but all restaurants that have been harmed by COVID-19 restrictions is an important part of the lawsuit, Martinez said.
“I feel like we’re not just representing us,” he said. “We represent a majority of the restaurants in Durango and the state.”